Religious Freedom In Focus, Volume 12

DOJ seal United States Department of Justice
Civil Rights Division

June/July 2005
Volume 12

Religious Freedom in Focus is a periodic email update about the Civil Rights Division's religious liberty and religious discrimination cases. The Civil Rights Division has placed a priority on these cases. Through vigorous enforcement of:

  • Federal statutes prohibiting religion-based discrimination in education, employment, housing, public facilities, and public accommodations;
  • Federal laws against arson and vandalism of houses of worship and bias crimes against people because of their faith; and
  • The Religious Land Use and Institutionalized Persons Act (RLUIPA);

and through participation as intervenor and friend-of-the-court in cases involving the denial of equal treatment based on religion, the Civil Rights Division is working to protect the right of people of all faiths to participate fully in public life.

More information about this initiative, and back issues of this newsletter, may be found on the religious discrimination home page of the Civil Rights Division website. You may also contact the Special Counsel for Religious Discrimination, Eric W. Treene, at (202) 353-8622.


Supreme Court Upholds Constitutionality of RLUIPA

The U.S. Supreme Court on May 31 unanimously upheld the constitutionality of the prisoner rights section of the Religious Land Use and Institutionalized Persons Act (RLUIPA). In Cutter v. Wilkinson, the Court held that singling out prisoner religious rights for protection did not unconstitutionally favor religion.

RLUIPA was enacted by Congress unanimously in 2000. One section of the law protects houses of worship and religious schools from discriminatory and unduly burdensome zoning and landmarking laws. Another requires states to make efforts to accommodate the religious practices of persons confined to institutions, consistent with security and other important needs. In a case brought by Ohio prisoners, the state complained that RLUIPA required it to permit religious activities like Bible studies but not comparable secular activities like political meetings. An appeals court agreed with the state, and held that accommodating religion but not equivalent secular activities “impermissibly advance[ed] religion by giving greater protection to religious rights than to other constitutionally protected rights.” The court thus struck the law down on its face as a violation of the Constitution’s Establishment Clause.

The Supreme Court overturned the appeals court and upheld RLUIPA in a unanimous decision. The Court held that Congress and state legislatures have the power to protect religious rights beyond that required by the Free Exercise Clause of the Constitution without running afoul of the Establishment Clause. The Court held that the prisoner section of RLUIPA “fits within the corridor between the Religion Clauses: On its face, [RLUIPA] qualifies as a permissible legislative accommodation of religion that is not barred by the Establishment Clause.” The Court specifically rejected the reasoning that RLUIPA impermissibly favored inmate religious speech over other forms of inmate speech, reiterating that “religious accommodations . . . need not come packaged with benefits to secular entities.” Responding to the concern that allowing prisoners’ religious freedom under RLUIPA would undermine prison security, the Court emphasized: “We have no cause to believe that RLUIPA would not be applied in an appropriately balanced way, with particular sensitivity to security concerns.”

Sentencing in Firebomb Attack on Mosque

On June 22, a Texas man was sentenced to 171 months in prison for the attempted firebombing of the Islamic Center of El Paso. Antonio Flores admitted at a plea hearing in March to throwing a lighted Molotov cocktail at the mosque and placing a second one near the mosque’s gas meter and lighting it. Flores pleaded guilty to two federal charges, violation of 18 U.S.C. § 247, known as the Church Arson Prevention Act, and violation of 18 U.S.C. § 844(h), which prohibits the use of fire or an explosive device in the commission of a felony. The case was investigated by the U.S. Bureau of Alcohol, Tobacco and Firearms, the FBI, and the El Paso Police Department, and was prosecuted jointly by the Civil Rights Division and the U.S. Attorney’s Office for the Western District of Texas.

“This kind of conduct is unconscionable, and the Justice Department will vigorously prosecute any individual who attempts to intimidate his fellow citizen through such abhorrent behavior,” Acting Assistant Attorney General for Civil Rights Bradley J. Schlozman said in a press release. We are gratified that the court recognized the gravity of this offense and imposed such a significant and appropriate sentence.”

This is the second recent federal prosecution of bias-motivated crimes involving the Islamic Center of El Paso. As previously reported in the October 2004 issue of Religious Freedom in Focus, on September 30, 2004, Jarred Bjarneson pleaded guilty to sending an e-mail threat that he would burn the mosque to the ground if American hostages being held in Iraq were not released within 72 hours. Bjarneson was sentenced on December 21, 2004 to 18 months in prison and two years supervised release.

DOJ Suit Alleges Township Discriminated Against Jewish School

On June 10, the Department of Justice filed suit against the Village of Airmont, New York, alleging that the village’s zoning code discriminated against a Jewish boarding school. The suit, brought under the Religious Land Use and Institutionalized Persons Act (RLUIPA), alleges that certain Airmont zoning provisions were enacted specifically to keep out Hasidic boarding schools.

Airmont enacted a zoning code in 1993 that included a provision barring all boarding schools. At the time, the Hasidic Jewish community operated boarding schools in nearby areas. Airmont, the suit alleges, enacted this bar on boarding schools in order to keep Hasidic schools out of the village.

Congregation Mischknois Lavier Yakov purchased a 19-acre tract of land in 2001 and sought to build a religious boarding school for boys. The congregation believes that boys should be sent to boarding school when they are 15 years old, in order to live, study and pray together in an atmosphere that has minimal outside influences. The congregation applied for a permit, but the village denied it due to the boarding-school bar in the zoning code.

The DOJ suit alleges violations of two different sections of RLUIPA. First, the suit alleges that the village has violated Section 2(b)(2) of RLUIPA, which bars discrimination on the basis of religion or religious denomination, since the ban was enacted specifically to keep out the Hasidim. Second, the suit alleges that the village violated section 2(a) of RLUIPA, which bars the government from placing a substantial burden on religious exercise without compelling justification. The suit maintains that the village has blocked the congregation from providing the religious education that is a key element of its faith without a compelling justification. Numerous multiple-unit residential facilities that are comparable to boarding schools in their impact on the community, the suit contends, are permitted under the zoning code, including nursing homes, sleep-away camps, apartments and condominium complexes for senior citizens, and group homes for the disabled. The suit also includes a claim alleging violation of the Fair Housing Act.

Since 2001, the Civil Rights Division痴 Housing and Civil Enforcement Section has opened 23 investigations of municipalities and counties for violation of RLUIPA. This is the third lawsuit filed by the Department of Justice under RLUIPA.

Town Changes Ordinance that Discriminated Against Churches in Response to DOJ Investigation

On July 13, 2005, the Department of Justice closed its investigation into whether the City of Austell, Georgia violated the Religious Land Use and Institutionalized Persons Act (RLUIPA) after the Town amended its zoning ordinance to remove a measure that discriminated against churches and other houses of worship. The Department had opened an investigation in August 2004 after learning that the city had taken efforts to block a small storefront church from operating in the city, relying on the city’s 5-acre minimum for churches. While all houses of worship were subjected to the 5-acre minimum, social clubs, lodges, and other place of assembly were permitted without any minimum acreage requirement.

Deliverance by Faith Ministries, a Christian congregation with about a dozen members, began meeting in an 800-square-foot storefront space in the Austell business district in May 2002. On February 18, 2004, Austell police interrupted an evening prayer service to serve notice that the congregation was in violation of the Austell zoning code’s five-acre requirement for churches. The notice required the church to vacate the premises within 60 days or face fines and jail time.

Acting Assistant Attorney General Bradley J. Schlozman remarked: “We are pleased that the city saw that it was illegal to discriminate against churches, and promptly revised its zoning code to provide religious congregations the same freedom to use their property that nonreligious organizations enjoy.”

Brief Filed in Sabbath Accommodation Case

The Department of Justice and the Equal Employment Opportunity Commission (EEOC) filed a joint friend-of-the-court brief in a case involving a New York man fired from his job at Home Depot for refusing to work on Sundays. The brief, filed in the U.S. Court of Appeals for the Second Circuit on June 15, argues that Home Depot’s offer to let the man attend church services on Sunday morning does not automatically satisfy its obligations under federal employment law since the employee’s claim was not merely that he had to attend church, but that his beliefs barred him from working at all on the Sabbath.

The Plaintiff in the case, Bradley Baker, is a member of the Full Gospel Fellowship Church, and his faith bars him from working on Sundays. Home Depot accommodated his religious needs for more than a year by not scheduling him for Sunday work. A new store manager, however, concluded that Saturdays and Sundays were the store’s busiest days and told him he would have to work Sundays. After he was fired for refusing to work on Sundays, Baker filed suit under Title VII of the Civil Rights Act of 1964. Title VII requires employers to make a “reasonable accommodation” of an employee’s religious beliefs and practices, unless doing so would be an undue hardship on the employer.

The trial court concluded that Home Depot had offered a reasonable accommodation to Baker by offering to let him have Sundays off to attend worship services. The court thus held that it did not even have to determine whether accommodating Baker would cause an undue hardship on Home Depot. The court then dismissed the case, and Baker appealed.

The brief of the Civil Rights Division and the EEOC argues that the trial court erred by skipping the inquiry into whether giving Baker Sundays off would cause an undue hardship for Home Depot. The brief argues that since Baker’s religious beliefs did not merely require him to go to worship services on Sunday, but instead compelled him to refrain from work altogether, offering him only time off in the morning could not be considered a “reasonable accommodation.” As the brief explains: “A company’s offer is not a reasonable accommodation unless it removes the conflicts between the employee’s work duties and his reasonable beliefs.” Therefore, the brief contends, the case was improperly dismissed, and should be sent back to the trial court to determine if it would be an undue hardship on Home Depot to provide Baker with Sundays off.

New Religious Freedom Publications Available from the Department of Justice

The Department of Justice is pleased to announce the release of three publications designed to educate citizens about their religious freedom rights under federal law. First, we have updated Protecting the Religious Freedom of All, the 4" x 9" booklet first printed in 2002, which provides an overview of the statutes protecting religious freedom that are enforced by the Civil Rights Division, along with information about how to report violations. Second, our new color A Guide To Religious Land Use Issues focuses on the land-use provisions of the Religious Land Use and Institutionalized Persons Act of 2000 (RLUIPA). Finally, Know Your Rights: Federal Laws Against Religious Discrimination is a one-page color fact sheet providing a brief summary of the laws protecting individuals and institutions from religion-based discrimination. All three may be accessed and printed at the links above, or can be ordered in hard copies in quantity by contacting Jacqueline Greene at (202) 514-5410 or

United States Department of Justice
Civil Rights Division

Updated August 6, 2015

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